ALJDEC decisions subject to certification as final

09F-270098-DEN · Board of Dental Examiners · 2009-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2009 and July 24, 2009. APPEARANCES: The Arizona State Bar of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams. Rosalyn D. Keith, D.D.S. appeared personally and she was represented by her attorney, Jeffrey J. Tonner, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Arizona Board of Dental Examiners (“Board”) is the authority for licensing and regulating the practice of dentistry in the State of Arizona. 2. Rosalyn D. Keith, D.D.S. (“Respondent”) is the holder of License No. D4190 issued by the Board for the practice of dentistry in Arizona. 3. The above-entitled matter came on for hearing before the Office of Administrative Hearings, an independent agency, pursuant to a Complaint and Notice of Hearing issued by the Board against Respondent in Case No. 270098. 4. On March 28, 2007, Respondent’s former patient, L.P., filed a written complaint against Respondent with the Board in Case No. 270098. L.P.’s complaint against Respondent was the following: I initially saw Dr. Keith and had to have restorative work done by Dr. Bentley which I had to pay out of my pocket because of Dr. Keith butchering my mouth. When she did my bottom veneers she even had the nerve to tell me my jaw was crooked and that’s why they fit that way. Dr. Bentley fixed it for me the best he could.

5. A.A.C. R4-11-1303(A) sets forth the requirements for a dentist treating a patient with oral conscious sedation: A. Before inducing oral conscious sedation on an outpatient basis, a dentist shall possess a Section 1303 permit issued by the Board, unless the dentist qualifies for a permit under subsection (E). A dentist may renew a Section 1303 permit every three years by complying with R4-11-1306. 1. A dentist who possesses a Section 1301 or section 1302 permit may also induce oral conscious sedation without obtaining a Section 1303 permit. 2. The administration of an anti-anxiety drug is not combination inhalation and enteral conscious sedation if: a. Only one dose of one anti-anxiety drug is administered; b. The intent of administering the anti- anxiety drug is anxiolysis only; and c. The administered dose of anti-anxiety drug is within current guidelines for anxiolysis dosage on the manufacturer’s package insert or other recognized drug reference.

6. A.A.C. R4-11-1303 allows a dentist to give an oral sedative to a patient for anxiolysis, or anti-anxiety, purposes without having a permit. 7. Respondent practices only one form of sedation, which is anxiolysis sedation. In her testimony, Respondent defined anxiolysis sedation as follows: It’s a reduced state of - well, it’s a reduced state of sedation, its lowest form, a minimal amount of sedation. And basically the patient is able to stay alert. She is relaxed so that we can perform the duties that we need to do…You can put them in a more – a deeper sedation, which is what I believe [is] oral conscious sedation, and that’s typically done with a little different protocol than we use in our practice.

8. Michael Mansfield, D.M.D. testified at the hearing as the Board’s expert witness. Dr. Mansfield is an Arizona licensed dentist who practices oral and maxillofacial surgery. 9. Dr. Mansfield holds a Section 1301 permit. He generally uses general anesthesia in his dental practice. 10. Dr. Mansfield explained the various permits as follows: A general, a 1301 permit, is a permit that allows the provider to administer general anesthesia or deep conscious sedation or oral conscious sedation. A 1302 permit holder is a permit [sic] that allows a provider to administer conscious sedation through either an intravenous or intramuscular route. A 1303 permit holder allows the holder to use one single drug at therapeutic dose, possibly with nitrous oxide, to administer conscious sedation.

11. Dr. Mansfield testified that the exception to A.A.C. R4-11-1303 requires that a dentist “…use one drug and only one drug…that the drug must be given at the recommended dosage for anxiolysis only… [T]he intent of the administration of the drug is for anxiolysis.” 12. Patient L.P. had several appointments with Respondent from April 13, 2006 to July 8, 2006. 13. L.P. financed her treatment with Respondent by obtaining a loan from Capitol One. Respondent received payment in the amount of $19,425.00 from L.P. 14. Dr. Mansfield testified that Valium is commonly prescribed to dental patients for anti-anxiety. He described Valium as follows: “Valium is a long-acting benzodiazepine, the serum half-life of Valium can be up to 48 hours, which means half of the drug is metabolized. But its major metabolite, which is methyl diazepam, has a serum half-life of what can be up to 100 hours. So it’s a very long-acting drug.” 15. Respondent prescribed 10 milligrams of Valium for L.P. to be taken the evening prior to treatment. Respondent prescribed the Valium for L.P.’s TMJ condition, so that her mouth would be prepared for the extensive treatment the following day. 16. On the days of treatment, Respondent administered .5 milligrams of Triazolam in a powdered form sublingually to L.P. for anxiety. 17. The Dental Organization of Conscious Sedation (“DOCS”) is a private organization that developed protocols for the administration of oral sedation.[1] Respondent stated that she followed the DOCS’ protocol for anxiolysis sedation. However, the DOCS protocol conflicts with the manufacturer’s guidelines and the permitting requirements of A.A.C. R4- 11-1303. 18. Dr. Mansfield credibly testified that the DOCS is not a recognized drug reference. 19. Dr. Mansfield also credibly testified that he could not find the method of delivering Triazolam in the powder form sublingually in any recognized pharmacologic text. Dr. Mansfield testified as follows: Well, it’s a method of delivery, like I said, I could not find any legitimate text that states that that was an acceptable method of delivery.

And then the dosage, I mean, the maximum recommended, the MRD, for Triazolam is point-5. But that is only to be used in the exceptional cases when smaller doses have been tried and the patients were refractory. So the dosage was very large, sublingual route with rapid administration, high serum level. So yeah, that, to me, was of concern.

20. Respondent testified that she did not treat L.P. with a lower dosage of Triazolam in either pill or powder form because she was following the DOCS protocol and the patient was not reacting well to the .5 milligram dosage. 21. Respondent is found to have used two anti-anxiety medications, Valium and Triazolam, in her four treatment sessions of L.P. Therefore, Respondent was required to possess a 1303 permit. 22. L.P. became dissatisfied with Respondent’s treatment prior to its completion and did not return to see Respondent for the placement of the second set of final restorations. 23. On August 15, 2006, L.P. presented to Dr. R. Brent Bentley, D.M.D, for treatment. Clinical and radiographic documents from Dr. Bentley’s patient records for L.P. show that some of the provisional restorations Respondent had placed on L.P.’s teeth had deficient margins and/or decay. 24. By Order dated February 7, 2008, the Board issued the following order: “Dr. Keith shall undergo a comprehensive practice assessment. The results of the assessment shall be forwarded to the Board for review and consideration at the April 11, 2008 meeting.” 25. Respondent hired Affiliated Monitors, Inc. to assess several areas of her dental practice operation and management, including general office environment and facilities, office technology and information security, screening and credentialing of employees, delegation of patient care functions, workplace safety and emergency preparedness, infection control practices, clinical documentation, drug prescription and dispensing practices, anesthesia and sedation practices, confidentiality of patient records, and coding and billing services. 26. On March 28, 2008, Affiliated Monitors, Inc. prepared a written report detailing its findings of the assessment of Respondent’s dental practice, which was sent to the Board. The report also contained specific recommendations for Respondent’s dental practice. 27. A controversy exists concerning an alleged statement made by Respondent to Irma Koleszar, a certified dental assistant and practice management consultant who performed a portion of the evaluation for Affiliated Monitors, Inc. Ms. Koleszar reported that Respondent stated to her that Respondent possessed a 1303 permit. Respondent denies making such a statement. The Administrative Law Judge finds both witnesses credible as what they each perceived happened concerning this issue. 28. On June 24, 2008, the Board issued a subpoena to Respondent for L.P.’s original treatment records. Respondent failed to comply with that subpoena. Respondent testified that she had placed L.P.’s treatment records in the trunk of her car following an investigational interview with Board staff. She later was involved in an automobile accident, which resulted in a bottle of bleach breaking in the trunk that destroyed L.P.’s original treatment records. Respondent did not inform the Board of this event after she received the subpoena. Respondent did not produce the damaged treatment records to support her claim. 29. In the March 28, 2008, Affiliated Monitors, Inc. addressed Respondent’s handling of treatment records as follows: …[S]taff members reported that Dr. Keith sometimes takes patient records out of the office without informing her staff that she has done so – this leads to confusion later when insurance carriers or other external parties seek copies of records and the staff is unable to locate and produce the requested material because they do not know where it is. Staff members told us that in some cases, Dr. Keith was compelled to attempt to re-create records so that they could be reproduced and provided to external parties. This forces Dr. Keith to attempt to recall events which may have occurred weeks or even months ago.

Prior Board Action Involving Respondent 30. In Board Order Case No. 96032, consolidated with Case No. 96366, dated October 30, 1997, the Board issued an Order imposing the following discipline: a) Restitution in the amount of $1,644.00 to the Complainant. b) An Administrative Penalty in the amount of $500.00. c) Additional continuing education of 12 hours in the area of crown and bridge; six hours in the area of dental ethics; retake and pass the Arizona State Jurisprudence Exam. d) Probation for a period of 12 months.

31. Board Order Case No. 99233 dated December 15, 1999, imposed the following discipline: a) An Administrative Penalty in the amount of $1,000.00. b) Probation for a period of 4 months, during which Respondent was required to complete Board pre-approved continuing education in the 12 hours of crown and bridge and the 6 hours of dental ethics previously ordered to be completed.

32. On June 16, 2000, the Board issued Respondent a Letter of Concern in Case No. 99358 “regarding follow up x-rays to determine fit of crowns and healing of root canals.” (Emphasis in the original.) 33. Board Order Case No. 200129 dated August 30, 2000, imposed the following discipline: a) An Administrative Penalty in the amount of $500.00. b) 12 months probation within which Respondent was required to complete 48 hours of community service.

34. Board Order Case No. 210217 dated February 20, 2002, imposed the following discipline: a) An Administrative Penalty in the amount of $2,000.00. b) Probation for six months, during which Respondent was required to complete additional continuing education of 4 hours in risk management. c) A requirement that Respondent to retake and pass the Jurisprudence exam within six months.

35. Board Order Case No. 240178 dated October 14, 2004, imposed the following discipline: a) Additional continuing education of 12 hours in the area of diagnosis and treatment planning to be completed within six months.

36. Board Order Case No. 240323 dated April 13, 2005, imposed the following discipline: a) An Administrative Penalty in the amount of $2,000.00.

37. Board Order Case No. 250055 dated August 17, 2005, imposed the following discipline: a) Additional continuing education of 6 hours in the area of practice/case management.

38. Board Order Case No. 250371 dated June 16, 2006, imposed the following discipline: a) An Administrative Penalty in the amount of $1,500.00.

39. Board Order Case No. 260373 dated April 26, 2007, imposed the following discipline: a) An Administrative Penalty in the amount of $2,000.00. b) Complete 24 hours of community service.

40. Board Order Case No. 260392 dated June 11, 2007, imposed the following discipline: a) An Administrative Penalty in the amount of $2,000.00.

CONCLUSIONS OF LAW 1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G) (2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent’s administration of Valium the night before treatment and Triazolam the morning of treatment to L.P. constituted oral conscious sedation, which required Respondent to possess a 1303 permit. Therefore, the Administrative Law Judge concludes that Respondent violated the provisions of A.A.C. R4-11-1303. 4. Respondent’s treatment of L.P. involving the administration of oral conscious sedation without a permit and the inadequate provisional restorations that Respondent placed constituted a danger to the health, safety, and welfare of L.P. Such conduct constitutes a violation of A.R.S. § 32-1201(21) (n). 5. Respondent’s failure to maintain L.P.’s original treatment record and to provide it to the Board in response to the Board’s subpoena constitutes a violation of A.R.S. §§ 32-1264(A) and 32-1201(21) (w) and (x). 6. The Administrative Law Judge concludes that there is insufficient evidence to support the allegation that Respondent reported to the practice monitoring firm during its assessment that she possessed a 1303 permit. Therefore, there is no factual basis to conclude that Respondent committed an act of unprofessional conduct under A.R.S. § 32-1201(21) (1), as alleged in the Complaint and Notice of Hearing. RECOMMENDED ORDER Respondent’s License No. D 4190 shall be revoked on the effective date of the Order entered in Case No. 270098. The revocation of Respondent’s License No. D 4190 shall be stayed for a period of five years, during which Respondent shall be on disciplinary probation, subject to any terms and conditions imposed upon Respondent by the Board or its designee. If Respondent commits any statutory or regulatory violations during the term of the probation, the Board may seek to remove the stay of the revocation, after notice and an opportunity for hearing. Respondent’s License No. D 4190 shall have a permanent restriction that Respondent be prohibited from administering either oral conscious sedation and/or anxiolysis to any patient commencing on the effective date of the Order entered in Case No. 270098. If Respondent obtains a 1303 permit, then she may apply to the Board to remove this restriction from her dental license. Not later than 60 days after the effective date of the Order entered in Case No. 270098, Respondent shall pay to the Board an administrative penalty in the amount of $2,000.00. If Respondent fails to timely pay such administrative penalty, then Respondent’s dental license shall be automatically suspended on such deadline date until such time that she makes such payment. Done this day, August 31, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Elaine Hugunin, Executive Director Board of Dental Examiners 5060 North 19th Avenue, Suite 406 Phoenix, AZ 85015

By ___________________________

----------------------- [1] Respondent referred to this organization as the “Doctors of Oral Conscious Sedation.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826